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Are Deadbeat Lists Dead? Community Associations vs. the Florida Consumer Collection Practices Act

June 29, 2020

By: Alexander Dobrev, Michael Provenzale & Emmett Egger

Assessments owed to condominium and homeowners associations (Associations) now may be consumer debts as defined by the Florida Consumer Collection Practices Act (FCCPA). Consumer debts (or debts) under the FCCPA are defined as a (1) consumer’s obligation or alleged obligation to pay money (2) arising out of a money, property, insurance or services transaction which is (3) primarily for personal, family or household purposes.

Florida’s Fifth District Court of Appeal’s Ruling

Florida’s Fifth District Court of Appeal (Fifth DCA) previously has held that assessments owed to Associations are not consumer debts and, therefore, the FCCPA does not apply. Yet in an opinion on June 12, 2020, Williams v. Salt Springs Resort Condominium Association, the Fifth DCA receded from its prior precedent, ruling that assessments owed to a condominium association can be FCCPA consumer debts. In its ruling, however, the court declined to find that assessments owed to Associations are automatically consumer debts; thus, whether assessments owed to Associations are consumer debts will depend on the facts in each case.

Why This Matters (FCCPA Compliance)

This ruling is significant as Associations and management companies now may have to comply with the FCCPA. For example, the FCCPA prohibits certain consumer debt collection practices, including a ban on communicating with the debtor during certain times of the day and publishing a list of the debtors names, commonly known as a “deadbeat list”, for the purpose of enforcing or attempting to enforce collection, which is what occurred in the Williams case.

Importantly, the FCCPA’s application to Association assessments does not apply only when a unit owner is delinquent. Rather, the Fifth DCA’s decision in Williams indicates that the FCCPA’s application originates when a unit is purchased and can even extend to assessments owed on the unit prior to the purchase. Lastly, if an Association, a member of an Association’s board of directors, or a management company fails to comply with the FCCPA, such parties may face a class action lawsuit and could be liable for the plaintiffs’ actual damages, court costs and reasonable attorney’s fees, together with up to $500,000.00 in additional statutory damages depending on the number of class members and such parties’ net worth.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Alexander

Alex Dobrev is a shareholder and chair of the firm’s Multifamily & Condominium Group. His practice focuses on working with investors, developers and lenders on the acquisition, disposition, development and financing of multifamily, condominium and other commercial real estate projects, often involving distressed properties. He has significant experience evaluating, structuring and negotiating large-scale mixed-use development projects.

In the context of “broken” or “fractured” condominium projects in particular, he frequently works with lenders, bulk investors, and receivers to evaluate and implement exit strategies, including possible unwinding of the condominium regime, while identifying and minimizing potential successor developer liabilities and related risks.

Alex also counsels clients regarding Interstate Land Sales Full Disclosure Act (ILSA) compliance matters, including full and partial exemptions from the Act and overall offering structure.

An active member of the Real Property, Probate and Trust Law Section of The Florida Bar, Alex serves on the Section’s Executive Council and as vice chair of the Condominium & Planned Development, Information Technology, and Professionalism & Ethics Committees. He is also chair of the Commercial Real Estate Committee’s Blockchain & Digital Assets Task Force.

Michael

Mike Provenzale is a shareholder in the Creditors’ Rights Group, representing institutional and private lenders in commercial loan foreclosure and other collection lawsuits, receiverships, workouts, bankruptcies, and REO dispositions throughout the state. His litigation practice also includes business, real estate, and condominium litigation.

Additionally, Mike has experience in the area of Real Estate Transactions, Development and Finance, where he has represented a myriad of private and public clients in connection with the leasing, financing, acquisition, and disposition of commercial real estate, and has published several articles on current creditors’ rights and real estate issues.

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